Doing Life on Death Row

"I've been through the dark side of hell and back again; journeyed through life with nary a friend. I've laughed and I've cried; I've lived and I've died, and yet each day I'm condemned to do it again and again." Michael Lambrix (death row ~ Florida)

Tuesday, 31 May 2016

I would argue that the transformative power of a simple mirror is the
foundation for the evolution of self. Looking deep into the image
staring back at us, we are compelled to scratch at the scars of our own
shattered souls and confront truths we want to avoid. From the
beginning of time this has been true. I can only imagine a primitive
version of humankind finding himself crouched down at the muddy edge of a
pond looking deep into his own reflection and questioning who he was
and wanted to be. It was that self-examination that brought about
evolutionary change.

I was barely 16 and out on my own, far away from any “home” I might have
had and struggling to survive on the streets while others my age were
still in school. I found work with a traveling carnival and slept at
night in the tents along the midway that housed the games and
concessions. I was not alone, but only one of many “midway misfits”.
After the show shut down each night and silence blanketed the darkened
grounds, we would emerge from the shadows and congregate in our groups,
each chipping in what we could to buy whatever alcohol or drugs might be
available. As we each indulged in our vice, the past each of us had run
away from would be forgotten. We had survived another day.

One particular cold winter night outside of Chicago, as our little band
of midway misfits broke up, each to stagger away each in their own
direction, I sought warmer shelter. I ventured into the “House of
Mirrors.” I was drunk and stoned, but the surreal experience came to
define that time in my life. Although I knew each mirror was
deliberately made to reflect a distorted image, as I stared I found that
it was I who was so damaged and all I wanted to do was run from that
reflection of who I was.

It would take another 16 years before I found myself in a solitary cell
on Florida´s infamous Death Row, looking deep into a simple plastic
mirror at the man I had become. I could no longer pull away. I had
already been condemned to die years earlier and even come within hours
of being executed (please read: “The Day God Died”).
But it was only then that after years of refusing us any form of mirror
under the pretense that mirrors posed a “security threat”, that
suddenly we were allowed to purchase and possess simple plastic mirrors.
For the first time in many years I found myself staring at the image
looked back at me.

That was over 20 years ago. The experience motivated me to write a
widely published essay “To See the Soul – a Search for Self” (published
in Welcome to Hell by Jan Arriens
as “A Simple Plastic Mirror”) in which I struggle to confront who I
was and who I want to become after realizing I didn´t like the man
looking back at me and I’d wanted to become something better. That
mirror contributed to changing who I was, giving me direction in my
journey through life. I continue to stagger along the path toward my
still unknown destination, as the uncertainty of my fate remains
undetermined.

But what I didn´t know then, and do now, is that with each step of the
journey we continue to grow. To paraphrase the philosopher Friedrich
Nietzsche, “That which does not kill us can only make us stronger.” I
came to embrace the belief that each experience is an opportunity to
grow, and that I alone possess the power to determine how the misery
inflicted upon me might affect me. And being condemned to die at the
hands of man did not deprive me of who I wanted to become.

The poem “If” by Rudyard Kipling became my inspiration as I found myself
cast down into an environment of lost souls. Ones consumed by the hate
I would come to know well, because when all else fails, hate finds a
way to prevail. Each day is a struggle to not allow it to possess my
soul, too. And when I do find myself becoming influenced by the
destructive darkness of hate, I again read these words:

If you can keep your head when all about you are losing theirs and blaming it on you –If you can trust yourself when all men doubt you, but make allowance for their doubting, too –If you can wait and not be tired of waiting, or being lied about, don´t deal in lies –or being hated, don´t give way to hating, and yet don´t look too good, nor talk too wise –If you can dream and not make dreams your master, If you can think and not make thoughts your aim –If you can meet with triumph and disaster and treat those two imposters just the same –If you can bear to hear the truth you´ve spoken twisted by knives to make a trap for fools;or watch the things you gave your life to broken and stoop and build ´em up with worn-out tools;If you can make one heap of all your winnings and risk it on one turn of pitch-and-toss;And loss and start again at your beginnings and never breath a word about your loss;If you can force your heart and nerve and sinew to serve your turn long after they are gone;And so hold on when there is nothing in you except the will whish says to them “hold on!”If you can talk with crowds and keep your virtue, or walk with kings – nor lose the common touch;If neither foes or loving friends can hurt you, if all men count with you, but none too much;If you can fill the unforgiving minute with sixty seconds worth of distance run;Yours is the earth and everything in it, and which is more, you´ll be a man, my son.

Even under normal circumstances, few reach the point in their lives at
which they are compelled to confront who they are, not merely accepting
that they can be something better, but taking it to the next step of
making the conscious effort to evolve into an improved self. For most
of us, we are leaves fallen into a stream, our destiny by defined where
the water might take us with little effort spent changing its course.
Each decision along the way is contained within the boundaries of the
stream as if John Calvin´s definition of pre-destiny (a tenet of the
Presbyterian faith) dictates the direction of our life, each option
(“free will”) limited to that small world we live in.

If a normal life can be compared to flowing peacefully down a stream,
then prison life would be like being cast over a cliff, upon raging
rapids, violently cutting its way through steep canyon cliffs. Unable to
escape nor float downstream, every second of every day you must
struggle not to sink and even one moment of weakness will be your last.

Death Row is no different. Each of us is kept in continuous solitary
confinement, but we are still swept toward our own destruction in those
same white-water rapids. Most become so caught up in keeping their own
head above the water that they no longer search for elusive pods of calm
water hidden in the eddies along the way, and their own survival comes
at the cost of dragging others down in their own attempt to rise above.

As the passing years would patiently teach me, after long ago looking
into that plastic mirror and making the conscious decision to become a
better man than I was, that the image remained incomplete. I couldn´t
have known that by choosing this particular path I would find myself
repeatedly tested. Accepting myself being cast down into an environment
consumed by misery and hate, each day I had to find the strength not to
become part of the very thing I didn´t want to become.

But in this world, I was expected to be a “convict.” Conforming to an
abstract set of values that, while generally written in stone (i.e. –
mind your own business, don´t rat on others, be true to your word,
etc.), were still subjectively defined by those around you meant that
when tested, the choice not to respond as expected would result in a
perverted form of peer pressure. In the eyes of others, you were
reduced to something less than a “convict” and in here, anything less
than a convict makes you a target.

But as long as a man continues to define himself by what others think,
he can never be his own man. This place is its own hell, and I find
myself trapped in a world where doing the right thing is often the wrong
thing to do. I find myself precariously balanced between those two
conflicting worlds, each pulling at me as I hang above an abyss
threatening to consume me. I am not alone. I know of many others who
struggle daily to be better men, yet give into those raging rapids and
become what they perceive to be a “convict.” And for that, their lives
in here become easier, but their inner struggles become harder.

Many years ago I thought in my ignorance that by looking deep down into
theplastic mirror I had discovered my true self. But just as when I
found myself alone in that “house of mirrors,” I know now that what you
think you see in a mirror is not necessarily a true reflection. It
becomes a distortion of what you want to see. People go into the “House
of Mirrors” expecting to see a distorted image.

Now I look into a mirror knowing that when I do, the reflection will be
altered as I consciously scratch away at the scars of a shattered soul.
And it took me many years before I scratched away enough to start to
confront the past that formed me into who I was.

When I wrote “To See the Soul – A Search for Self,” I didn´t realize
just how pathetically superficial that self-examination was. I only saw
the reflection I wanted to see at the time. It was enough to know I
didn´t like the man I was and that I wanted to become something better.

For most of my life I never talked about my childhood or family life
beyond the grossly distorted surrogates I created in my own imagination.
I heard it said once that those who didn´t have a life before prison
create one. Crack-heads become self-proclaimed drug lords, pimps become
players and killers become “convicts.” To run with the big dogs you had
to be willing to become one of them. But few dare to scratch beneath
the surface of their own scarred souls and until they do, they can never
hope to evolve into something more than what they are.

The path I choose to journey down is a solitary one. Often it alienates
me from those I live amongst. When confronted by a perceived wrong,
such as someone “disrespecting” me, or another form of transgression in
this world, I am expected to respond with violence. Anything less makes
me appear as a “coward. ”Those who remain determined to be seen as
“convicts” can never understand that for me and others, being labeled a
“coward” is preferable to a “killer.” It takes a conscious decision to
turn the other cheek and not be reduced to the kind of person we’ve
struggled so hard not to become.

I find my own refuge in books. If I could, I would give every prisoner a
copy of my two favorite books…Dante´s “Inferno,” which provokes a lost
soul to contemplate the consequences or our actions, and Victor Frankl´s
“Man´s Search for Meaning,” which through profound truth teaches that
within each of us is the strength to not simply survive even the most
incomprehensible atrocities, but to overcome them.

As Frankl wrote, “Everything can be taken from a man but one thing: the
last of the human freedoms – to choose one´s attitude in any given set
of circumstances; to choose one´s own way….. “forces beyond your control
can take away everything you possess except one thing: your freedom to
choose how you will respond to the situation … when we are no longer
able to change a situation, we are challenged to change ourselves.”

I no longer keep my mirror taped to my wall. Now I keep it tucked
inside my Bible, so that as I search for strength in the wisdom of the
ages, I have it to look into. And it rests alongside my favorite quotes
from “Man´s Search for Meaning”.

Knowing that I live in a world in which in which hate prevails in the
absence of love and spreads like a cancer, I find my journey defined by
the pursuit of a tangible sense of “love.” It begins with love of self.
One cannot love oneself if he doesn’t like himself, and one cannot
truly love another until they´ve first embraced the love of self. Again,
to quote Victor Frankl:

“For the first time in my life I saw the truth as it is set into song by
so many poets, proclaimed as the final wisdom by so many thinkers. The
truth – that love is the ultimate and highest goal to which man can
aspire. Then I grasped the meaning of the greatest secret – that human
poetry and human thought and belief have to impart: the salvation of man
is through love and in love.”

Few can begin to comprehend the depth of misery inflicted upon those
condemned to death under the pretense of administering “justice.” Day
after day, month after month, year after year we are relentlessly beaten
down by the inescapable reality that society has found us unfit to
live. We are cast down into the bowels of a beast devoid of mercy and
compassion. Each day is a struggle to find the strength to hope.

Our artificial environment has been methodically structured to break
both body and soul, to erode all sense of hope. To alienate any
pretense of love until all that remains is the flesh they seek to kill.
And few possess the strength, much less the motivation, to rise above
it rather than become one with it.

But again, to quote Victor Frankl, “Life is never made unbearable by
circumstances, but only by a lack of meaning and purpose,” and “those
who have a “why” can bear with almost any “how,” as in some ways
suffering ceases to be suffering at the moment it finds a meaning.”

I found my “meaning” in that simple plastic mirror so long ago, and have
tried to stay true to the path I chose to follow. That doesn´t mean I
haven´t stumbled and even fallen along the way. I would be the first to
admit that I am far from perfect. But it’s not about being perfect.
It’s about striving to become something better than I once was. And
that in the many years since I found the strength to look into that
first simple plastic mirror, I´d like to think I have become someone
better.

My journey is coming to an end. I know I will soon be put to death.
Knowledge of this weighs heavily on my soul and I fight not to be
overcome by the gross injustice of my conviction and
condemnation.(please check out: www.southerninjustice.net)

But as I look into the mirror, I realize the uncertainty of my fate
remains irrelevant, because in the end, nobody gets out alive. We are
all born condemned to die. And perhaps for the purpose of discovering
who I was, and had the strength to become, it was necessary for me to
follow this particular path. I know that had I not been wrongfully
convicted and condemned to death, I would never have had the opportunity
to find myself in the simple plastic mirror, and subsequently discover
that strength within myself that made me a better man.

I continue to scratch at the scars of my own shattered soul. Scars
remain, but with each scratch I come to understand them better, and
finding strength to grow in spite of an environment intended to
suffocate growth. I have found my meaning. Through the reflection
staring back at me. Even when all else fails, love will prevail.

(end)

NOTE: If you would like to read about Mike´s “actual innocence” case, please check out www.southerninjustice.net If you would like to sign a petition requesting clemency for Mike, please do so at www.save-innocents.comClick here to read a recent story on Mike and his case

Friday, 22 January 2016

As if a scene straight out of The Twilight Zone, circumstances trapped
me within the cold and calculated process that resulted in the murder by
state sanctioned execution of Oscar Ray Bolin on January 7, 2016. In
all the years I´ve been on Florida´s death row, I´ve never been in such
close proximity to an execution as it unfolded around me, forcing me to
become part of the very process that they intended to then subject me to
in precisely five weeks’ time.

On November 30, 2015, Florida Governor Rick Scott signed my death
warrant and I was immediately transferred from the main death row unit
at Union Correctional (less than a mile away) to the “death watch”
housing area on the bottom floor of Q-Wing at Florida State Prison. I
joined Oscar down there—his own death warrant had been signed about 5
weeks earlier and they intended to murder him on January 7. There are
only three cells in the death watch area, and Oscar was in cell one, and
I was place in cell three, with an empty cell separating us.

Through those five weeks, each day brought him closer—his wife of almost
twenty years solidly by his side, uncompromised in her commitment to
stand by him and prove that he was innocent. And those familiar with the
case knew that recently developed evidence did establish a persuasive
issue of innocence, too.

His final rounds of appeals focused specifically on evidence supporting
his innocence and the hope that the courts would do the right thing. As
the New Year weekend passed, the Federal District Court summarily denied
review of his innocence claim upon the finding that the lower Federal
Court didn´t have jurisdiction to hear his claim of innocence. But there
was hope, as the District Court granted a “Certificate of
Appealability” (“C.O.A.”) authorizing appellate review before the
Eleventh Circuit, and soon after the Eleventh Circuit issued an order
establishing a “briefing schedule” in March…it seemed all but certain
that Oscar would be granted a stay of execution and his claim of
innocence would be fully briefed and heard by the appellate court.

Monday, January 4 passed as he anxiously awaited word that a stay of
execution would be granted, but there was only silence from the court.
Each day his wife spent every minute she could and it is impossible to
imagine the pain she felt—she too was unquestionably a victim caught up
in this cold process that unfolded around her.

I sat in my solitary cell not more than ten feet away and found myself
impressed with the strength Oscar exhibited, and the concern he held for
his wife and what this process inflicted on her. Society wanted to
label this man a cold-blooded killer, yet if only those only too willing
to throw stones could see the desperate concern he had for his wife,
they could see how wrong they are.

Now I struggle to find the words—and with a reluctance to even write
about what I involuntarily witnessed. But if I don´t, then who will? And
is it really fair that the record of what transpired would otherwise be
the state´s own version, leaving no perspective from those that they
kill?

I must emphasize that even as much as these events impacted me due to my
close proximity to this process, it is not comparable to what they were
forced to endure, and the loss those who loved Oscar Bolin suffered. My
attempt to share what transpired from my own unique perspective is done
in the hope that perhaps by bearing witness, others would see just how
incomprehensibly inhuman this process is, and how truly cold-blooded
this act of murder is…and to know it is carried out in all of our names.

And I apologize for rambling on—it is not easy for me to find the
necessary words. I can only hope that I can convey the true impact of
what unfolded and compel those that read this to ask themselves whether
this truly is what we aspire our society to be? It´s easy to justify the
death penalty by claiming that it is in the interest of justice to kill
those convicted of killing another—to become a killer ourselves.

But how many give a thought at all to just how much contemplation is put
into this process employed to take that life? I am again reminded of
what I once read, written by the philosopher Frederick Nietzsche,
“Beware that, when fighting monsters, you yourself do not become a
monster.”

Think about that. It´s easy to dismiss what I say by blindly insisting
that a jury convicted Oscar Bolin of murder and that justice demands
that society take his life. But really—who is actually investing more
conscious thought into the act of taking a human life?

It is for this reason I´m determined to share my own unique perspective
of what this process is, and how by these very actions it reduces
society itself to that very level of becoming “the monster.” Perhaps in
my attempt to share this, others can see just how wrong this is.

On the early morning of Monday, January 4, the day began with the death
watch staff advising both me and Oscar of our scheduled visits and phone
calls for that day, I had already asked my family and friends not to
visit that week as I didn´t want my visits to interfere in any way with
Oscar´s visits. All I had was a phone call from my son early that
morning and a legal phone call with my lawyer later that day.

Oscar had a visit with his wife and both anxiously awaited any word from
the Eleventh Circuit courts hoping that a full stay of execution would
come and the court would allow full and fair review of his innocence
claim. But the day passed without any word from the court. By that
evening Bolin was down to 72 hours—and I know from personal experience
how difficult that was, as I had come within hours of execution myself
when I was on death watch years earlier—only I was granted a stay.

By Tuesday morning, January 5, Oscar was down to sixty hours, and the
clock continued to tick away and yet still nothing from the courts on
whether they would allow his claim of innocence to be heard. Oscar spent
from late morning until mid-afternoon with his wife in the non-contact
visiting area. Upon his return, his demeanor was more subdued and the
stress and anxiety he felt became all but tangible. And as I sat
silently a few feet away in my own solitary cell, I wondered whether any
of those willing to take his life gave even so much as a moment of
thought into what they were inflicting upon other human beings—and
again, Oscar was not the only one forced to count down those final hours
anxiously hoping that phone would ring with the news that the court
would allow his claim of innocence to be heard…every second of every
moment, every hour that passed inflicted incomprehensible pain upon his
wife and those that cared for him.

That evening passed in an uncomfortable silence as the courts would have
closed their doors for the night and no news would come until at least
that next morning. That psychological trauma of uncertainty weighed
heavily upon them.

I doubt Oscar slept much that Tuesday night—I know I didn´t. His T.V.
remained on into the early morning hours. By that next morning
(Wednesday) he was down to about thirty six hours until his still
scheduled execution and still no word from the court. It would be a long
day. They brought the breakfast trays as they did each morning, but
neither of us had any interest in eating. Down here on death watch, our
meals are kept under direct supervision of security staff to ensure
nobody (other prisoners or staff) has any chance of tampering with the
food or smuggling anything to the condemned prisoner.

This methodical countdown to the intended execution actually starts a
full week before, when they remove all personal property from the
condemned prisoner´s cell, placing him (or her) on “Phase II.” From the
moment they place the condemned prisoner on Phase II (that final week) a
guard is posted directly in front of the cell twenty four hours a day,
his only job to observe the condemned prisoner to ensure he (or she)
doesn´t attempt suicide or harm themselves—and a few have tried. Any
activity is written in a forest green “Death Watch Log.” Throughout this
time, not even for one second are you allowed to forget that they are
counting down your last days—and last hours.

Oscar again had a visit with his wife as she stood faithfully by him
spending every moment she could—even if those visits were restricted to a
few hours of non-contact (through glass) visits.

By early afternoon Oscar returned to his death watch cell—still no word
from the court. The hours dragged by as Oscar talked to the guard
stationed in front of his cell, simply talking about anything at all.

Warden Palmer came down, accompanied by Deputy Secretary Dixon (the
second highest Department of Corrections employee). They talked to Oscar
for a while mostly just to check on how he was holding up. But the
preparations had begun and that final twenty four hours was quickly
approaching. After they talked to Oscar, they stepped that few feet
further down to the front of my cell and spoke to me.

I must admit that I was impressed by their professionalism and their
sincerity that bordered on genuine concern. Perhaps the most heard
expression on death watch is an almost apologetic “we´re just doing our
job” and the truth is that the current staff assigned to work the death
watch area and interact with the condemned prisoners counting down their
final hours do go to great lengths to treat us with a sense of dignity
and respect seldom even seen in the prison system.

The significance of this cannot be understated. I´ve been down here on
death watch before years ago and came within hours of being executed
myself, and there´s always been a deliberate distance between the
condemned and the staff—especially the higher ranking staff. But it´s
different this time. In the five weeks that I´ve been down here almost
daily high ranking staff have come down to the death watch housing area
and made a point of talking to us in an informal manner, abandoning that
implicit wall of separation between them and us.

And now none other than the Deputy Secretary himself personally came
down to talk to us—I´ve never heard of this before. Shortly after they
left, Oscar asked the sergeant for the barber clippers. He wanted to
shave his own chest and legs, rather than have them do it the next day.
It had to be done, as the lethal injection process requires the
attachment of heart monitors and Oscar preferred to shave it himself—as
most would.

Oscar received another legal phone call later that afternoon—now down to
almost twenty four hours until his scheduled execution and still no
decision by the Eleventh Circuit as to whether or not they´d allow
review of his innocence claim. The lawyers would call if any news came,
but it was assumed that the judges deciding his fate already called it a
day and went home. No further phone call came that night. Again Oscar
stayed up late, unable to sleep until sometime in the early morning
hours and he was not alone, as sleep would be hard to come by.

We reached the day of execution. Typically, they change shifts at 6:00
a.m. working a full twelve hour shift. But on days of scheduled
execution, they change shifts at 4:30 a.m., as with the execution
scheduled at 6:00 p.m. they cannot do a shift change then, as the entire
institution will go on lockdown during that time.

With that final twenty four hours now counting down, each minute was
managed by strict “Execution Day” protocol, and the day started earlier
than usual. As if an invisible cloud hung in the air, you could all but
feel the weight of this day as it was that tangible, and undoubtedly
more so on Oscar. But he was holding up remarkably well, maintaining his
composure even though the strain was obvious in his voice. How does one
go about the day that they know they are to die? Again, I´ve been there
myself and I know how he felt and it cannot easily be put into words.

Oscar was diabetic and as with each morning, the nurse came to check his
blood sugar level and administer insulin, if necessary. Now within that
final twelve hours, nothing would be left to chance. Around 7:00 a.m.,
they let Oscar take a shower, and then after locking down the entire
institution, they took him up front for a last visit with his wife. They
would be allowed a two hour non-contact visit until 10:00 a.m., then an
additional one hour contact visit—the last visit before the scheduled
execution.

Shortly after 11:00 a.m. they escorted Oscar back to the Q-Wing death
watch cell. A few minutes later “Brother Dale” Recinella was allowed to
come down and spend a few hours with Oscar as his designated spiritual
advisor. Contrary to the Hollywood movies depicting the execution
process, the prison chaplain is rarely, if ever, involved as each of us
are allowed to have our own religious representative—and many choose
“Brother Dale” as he is well-known and respected amongst the death row
population.

Many years ago Brother Dale was a very successful lawyer, making more
money than most can dream of. But then he experienced a life-changing
event and spiritual transformation, as chronicled in his book “And I
Walk on Death Row” (see, www.iwasinprison.com).
Brother Dale and his equally-devoted wife Susan gave up their wealth
and privilege and devoted their lives to their faith and ministering to
death row.

Even as these final hours continued to count down, I remained in that
solitary cell only a few feet away and unable to escape the events as
the continued to unfold around me. There are only three cells on death
watch and I found it odd that they kept me down here as they proceeded
with this final process—when I was on death watch in 1988, they moved me
upstairs to another cell removed from the death watch area as they
didn´t want any other prisoners in the death watch area as these final
events unfolded.

Brother Dale left about 2:00 p.m. and the death watch lieutenant, a
familiar presence on death watch, then made a point of talking to Oscar
and they went over the protocol—shortly before 4:00 p.m. he would shower
again and then be brought around to the west side of the wing where
they had only one cell immediately adjacent to the door that led to the
execution chamber. I listened as this process was explained, knowing
only too well that in precisely five more weeks I would be given the
same talk.

The warden and Asst. warden came down again and talked to Oscar. A few
minutes later the Secretary (director) of the Florida Department of
Corrections, Julie Jones, personally came to Oscar´s cell and sat in a
chair and talked to him—I´ve never heard of that happening before. But
her tone of voice and mannerisms reflected genuine empathy towards
Oscar, and he thanked her for taking that time to talk to him.

As they now closed in on that final two hours before the scheduled
execution, Oscar received another phone call from his lawyer—the
Eleventh Circuit Court of Appeals still had not ruled on whether they
would grant a stay of execution and allow a full review of his pled
innocence claim. Oscar´s voice was obviously stressed. Per protocol, the
nurse gave him 5 mg. valium to calm his nerves.

Just before 4:00 p.m., Oscar spoke to me, wanting to talk about a
problem he and I had years ago—a problem that I alone was responsible
for and of which I have often regretted. In the five weeks we had been
on death watch together, it was not spoken of. But now, to my amazement,
even dealing with all that he was dealing with, Oscar wanted me to know
that he forgave me for what I did. And for a few minutes we talked. And
then the warden and his staff removed Oscar from his cell and escorted
him around to the west side of the wing, to the execution chamber
holding cell, where he would remain until the court cleared the way for
execution, or he received a stay of execution and was brought back to
this side.

A single sergeant remained on this side, and for the first time since I
was brought to death watch I was alone as the sergeant remained at the
desk just outside the cell block area—and I didn´t want to be alone. As I
do often, especially when stressed, I paced in my cell anxious to hear
any word on what was going on and checking my watch almost every minute,
and each minute dragged by so slowly it was almost as if time itself
had stopped and I couldn´t begin to imagine what Oscar and his wife were
going through.

At irregular intervals the sergeant would walk down to my cell to check
on me and I asked whether there was any more news. The Eleventh Circuit
had denied his appeal and the case quickly moved on to the U.S. Supreme
Court. The designated time of scheduled execution—6:00 p.m.—came and
went without any word from the Supreme Court.

Oscar would remain in that holding cell until the Supreme Court cleared
the way for execution—but at least both he and his loved ones still had
hope as the minutes continued to tick away.

Most don´t realize just how many people are involved in this execution
process and everybody remained on hold not knowing whether the execution
would proceed or not. Immediately adjacent to my cell was a solid steel
door that led directly into a hallway stretching the entire width of
the wing. Just inside this door was an area with a coffee pot and
chairs, and I could hear a number of unknown people congregated only a
few feet away from me on the other side of the door as they discussed
the continued uncertainty.

A larger crowd of unknown participants congregated on the lower
quarter-deck area between the west side of the wing where the death
watch housing area was and the door that led into the east side where
Oscar remained in the holding cell. I couldn´t make out what they were
saying and wondered, especially when I periodically heard laughter. I
suppose this long wait was stressful on them, too, and a moment of
levity could be forgiven. And yet I found myself wondering what they
could possibly find funny as they awaited that moment of time when they
would each assume their assigned task and take the life of another human
being.

One hour passed, and then another, and another yet. Then at almost 10:00
p.m. it suddenly got quiet—very quiet. All the voices that continuously
hummed both behind that steel door and the quarter-deck area just
suddenly went silent and without anyone around to tell me; I knew that
they all moved to their positions in the execution chamber.

It remained utterly silent—so quiet that I could hear the coffee pot
percolating at the sergeant´s desk on the other side of the gate and I
held my watch as the minutes passed and I strained to hear any sound at
all. But there was nothing and I knew they were now putting Oscar to
death. I cannot explain it, but I just felt it—and I got on my knees and
I prayed, and yet I couldn´t find any words and found myself kneeling
at my bunk in silence for several minutes.

Then I heard what sounded like a door on the other side of that concrete
wall that separated my cell from the execution chamber. Then I once
again heard muffled voices on the other side of that steel door. It was
over and it went quickly…Oscar was dead. A few minutes later I heard the
sound of a number of people going up the stairs leading away from the
execution chamber. Their job was done and in an orderly manner they were
leaving.

For obvious reasons, I didn´t sleep that night. Only a few feet behind
that wall of my cell, Oscar´s body now lay growing cold. There are no
words that can describe how I felt, but that emptiness that consumed me
and left me laying in my bunk in complete silence through the night.

Somewhere in the early morning hours I fell asleep, only to awaken just
after 7:00 a.m. It was a new day. The death watch Lieutenant was already
here and I was now the only one left on death watch. But just that
quickly, I was instructed that I had to immediately pack my property as
they had to move me to cell one—the cell that Oscar only recently
vacated.

I didn´t want to move to that cell, but I didn´t have any choice. That
was the same cell I previously occupied in late 1988 when I myself came
within hours of my own execution (read, “The Day God Died”)
and especially knowing that only a few hours again Oscar was in that
cell still alive and holding on to hope, I just didn´t want to be moved
to that cell. Every person who has been executed in the State of Florida
in the past forty years was housed in that cell prior to their
execution.

But it wasn´t a choice and I obediently packed my property and with the
officer´s assistance, I was moved from cell three to cell one. And as I
worked on putting all my property back where it belonged (storing it in
the single steel footlocker bolted firmly to the floor), a long-awaited
phone call from my close friend Jan Arriens came through.

While on death watch, we are allowed two personal phone calls each week,
and since my warrant was signed five weeks earlier, I had anxiously
awaited the opportunity to talk to Jan, but through the Christmas
holiday he was visiting his family in Australia. Having only recently
returned to his home in England, he arranged this phone call.

It was good to hear a friendly voice just at that time when I most
especially needed a friend. But we only had a few minutes to talk and
unlike those eternal moments of the night before, these minutes passed
far too quickly. But just hearing the voice of a friend comforted me.

Shortly after that phone call, I then had a legal visit and was escorted
to the front of the prison to meet with my lawyer´s investigator. We
spent hours going over legal issues and then it was back to the death
watch cell. Not long after I returned, I learned that the governor had
already signed another death warrant. This machinery of death continued
to roll along. By mid-afternoon a familiar face was brought down to join
me…Mark Asay (who we call “Catfish”) had his death warrant signed that
morning, with his execution scheduled for March 17, exactly 5 weeks
after my own scheduled execution.

With the methodical precision of a mechanical machine, Florida has
resumed executions with a vengeance, establishing a predictable pattern
of signing a new death warrant even before the body of the last executed
prisoner has grown cold.

Now I remain in the infamous “cell one,” next in line to be executed—and
on February 11, 2016 at 6:00 p.m., the State of Florida plans to kill
me. Until then, I will remain in a cell in which the last twenty three
occupants, without exception, resided until their own execution. I do
not like being in this solitary cell.

Sunday, 20 September 2015

Whether it was the almost guttural rumbling of the diesel generator or
that unmistakable sulfuric smell of the exhaust, or the combination of
both as I struggled to sleep through it on that chilly late fall
morning, I don’t know. But there I was at the edge of that abyss between
sleep and consciousness and caught in that moment between time and
eternity. I found myself tangled in the perception of the past, and what
once was new became a prophetic omen of what my life would be, and in
that moment I discovered that redemption is a mirror we all look upon.

Each Wednesday, for as long as I can remember, the same perverse ritual
played itself out as a reminder to all of us here that we are caught in a
perpetual state of limbo between life and death. Each day that passes
brings us one step closer to that judicially imposed fate. We are
condemned to death and if we ever did dare to forget that, the generator
served as a not-so-subtle reminder.

Now it seems like a lifetime ago since I was first housed on that north
side of what was then known as “R-Wing” (since then re-lettered as
G-Wing for reasons I suppose most of us will never know). But merely
changing the identifying letter that hangs above that solid steel door
opening on to what was then one of four wings at Florida State Prison
that housed us condemned to die in the years before they built the “new”
unit of Union Correctional won’t change what lies beyond. Upon
entering, one steps into a hell that only the malignant mind of men
could ever manifest into reality.

It was late in the summer and I was coming off disciplinary confinement
when I was moved over to an empty cell on R-Wing, placed about half way
down the tier on the second floor. I was told by the guys around me that
it was a quiet floor and a number of the guys made it clear they wanted
it to stay that way. I had no problem with that, as the floor I was on
had gotten wide open with radios and TVs blasting both night and day and
more than a number of the guys yelling to each other so they could be
heard above the noise and it never seemed to stop. Now, a little quiet
would be welcome.

I moved to the floor on a Friday morning and it took the better part of
that weekend to put my property up and arrange my new cell. Only
recently were we given large steel footlockers to store all our personal
property in. Prior to that, we pretty much just piled the numerous
cardboard boxes containing what we called our own in any manner we liked
and they left us alone. But the administration claimed the fire marshal
warned the boxes were a hazard and had to go.

It was just as well, as the boxes were magnets to the infinite number of
both cockroaches and rodents that infested the death row wings. At
least with steel locker, it was a little harder for them to get in and
out, although it didn’t take too long before they found their ways.

By early that following week I was getting to know the guys I now lived
amongst. Funny how that is, every wing on the floor you are housed on
seemed to have its own different set of personalities. This particular
floor was known to many as the celebrity floor, as it housed a few of
the more notorious death row prisoners, such as my new neighbor, Ted
Bundy.

While most of those on this particular floor were there by choice, each
patiently waiting for a cell to open then requesting to be placed in it
as they wanted to be housed on a quiet floor, both me and Ted had no
choice. I was placed there for no reason but luck of the draw—when my
time in lock-up (disciplinary confinement) was up, it was the only cell
open and for Ted, they just liked to keep him on the second floor near
the officers’ quarter deck so that when the occasional “four group” of
politicians or judges would come through, they could be paraded down the
outer catwalk and get their peek at “Bundy.” Most of the time we would
know when a tour group was coming and when we heard that outer catwalk
door open, we would quickly throw on our headphones and pretend to watch
TV as none of us cared to be their entertainment.

At first I didn’t know what to make of it when I realized that I was
suddenly housed next door to Ted. In the few years that I had been on
death row, I was previously always housed on what was then known as
“S-wing,” which was one wing up toward the front of where I now was, but
in many ways a whole other world away.

Like everyone else, I had heard of him. And for a good reason he didn’t
exactly go out of his way to reach out to those he didn’t know, as too
many even in our own little world liked to throw their stones…even those
cast down together into this cesspool of the system. I was already
aware of how doing time was about being part of a micro-community of
various clichés, each of us becoming part of our own little group.

But it didn’t take too long before I found myself standing up at the
front of my new cell talking to Ted around that concrete wall that
separated us. As coincidence would have it, we shared a lot of common
ground, especially when I mentioned that I was born and raised out on
the west coast and that Northern California would always be the only
place I would truly call “home.”

As the conversation carried on, he had asked if my family still lived
out there, but they didn’t, at least not any relatives that mattered.
After my parents divorced, when I was still too young to remember, my
father gained sole custody of me and my six siblings and then remarried
and we gained three more. It was anything but an amicable divorce, and
we never were allowed to get to know our mother.

But as I explained the family dynamics, I pulled out a picture of me
with my mother and stepfather taken when I finally did get to know them
when I was 22. I guess the snow outside the window gave it away, but Ted
quickly noticed that detail and commented that he had never seen the
snow like that around San Francisco and I then explained that my mom
didn’t live in California, as she had moved to Utah and I spent the
winter of ’81-’82 with them outside of Salt Lake City.

That caught his attention and after that I couldn’t have shut him up if I
had wanted to. For the rest of the evening and into the night he talked
about his own time outside of Salt Lake City and as we talked we
realized my mom lived only a few blocks from where his mom lived… small
world. As two people will do, when reminiscing about common ground, we
went on and on about various places we both knew, although neither of us
spent more than a few months there. But it brought us together.

In the following months we grew closer through our common interest in
the law. At the time I was barely just beginning to learn (Although at
that ripe age of 27 I would have sworn I already knew it all). Now twice
as old, I look back and realize I didn’t know half as much as I thought
I knew and through Ted’s patience I learned what it took to stay alive.

Most of those around here who consider themselves jailhouse lawyers know
only what little they might have read in a few law books and then think
they know it all. But as I would quickly come to know, only because my
new mentor had the patience to teach me, to truly understand the law you
must look beyond what the law says and learn how to creatively apply
the concepts. And that’s what makes all the difference.

During the time I was next to Ted I was preparing to have my first
“clemency” hearing. It’s one of those things we all go through and back
then they would schedule us for clemency review after our initial
“direct” appeal of the conviction and sentence of death were completed.
Only then, by legal definition, does the capital conviction and sentence
of death become “final,” if only by word alone.

But nobody actually would get clemency and we all know it was nothing
more than a bad joke, a complete pretense. I was still inexcusably
naïve, but Ted’s tutorage enlightened me and I dare say that if not for
that coincidence of being his neighbor at that particular time in my
so-called life, I would have been dead many years ago.

Back at that time, Florida had only recently established a state-funded
agency with the statutory responsibility of representing those sentenced
to death. But like most else in our “justice” system the creation of
this agency was really nothing more than a political pretense never
actually intended to accommodate our ability to meaningfully challenge
our conviction, but instead existed only to facilitate the greater
purpose of expediting executions.

A few years earlier as then Florida Governor “Bloody Bob” Graham
aggressively began to push for executions, at the time heading the
country in the number put to death, the biggest obstacle was the
complete absence of any organized legal agency willing to represent
those who faced imminent execution. Repeatedly, lawyers would be
assigned only at that last moment and then the courts would be forced to
grant a stay of execution until the newly assigned lawyers could
familiarize themselves with the case.

In 1985, Governor Graham and then Florida Attorney General Jim Smith
joined forces to push through legislative action to create a state
agency exclusively responsible for the representation of all
death-sentenced prisoners. They believed by doing so, it would speed up
executions, as lawyers would no longer be assigned at the last minute.
But many others argued that by creating this agency the state would
stack the deck by providing only lawyers connected to the state’s own
interests.

A compromise was reached in which a former ACLU lawyer known for his
advocacy on behalf of death row was hired as the new agency’s first
director, and soon after Larry Spalding then hand-picked his own staff.
This small group of dedicated advocates quickly succeeded in all but
stopping any further executions in Florida and the politicians did not
like that, not at all.

For those of us on the Row, it gave us hope. We knew only too well that
the insidious politics of death manipulated the process from the very
day we were arrested to that final day when we would face execution.
Anybody who thinks our judicial system is “fair” has never looked into
how the law really works. And with the agency exclusively responsible
for representing all those sentenced to death now at the mercy of
politically motivated legislative funding, it didn’t take long before
the conservative, pro-death politicians in Florida realized that by
simply denying the agency adequate funding they would render the work
meaningless while still technically complying with the judicial mandate
of, at least by statutory definition, providing the necessary legal
representation to carry out more executions.

At the time, I had already waited over a year for a lawyer to be
assigned to my case, but because of the inadequate funding of the
agency, none were available. For the entire Death Row population quickly
approached 300, the Florida legislature provided only enough money to
hire 3 staff lawyers. It was an impossible job, but they remain
committed.

Fortunately, with Ted as my neighbor, I received assistance not
available to others, and through his guidance I was able to file the
necessary motions requesting assignment of what is known as
initial-review collateral counsel. Although none were available, it
still built up the record and although like many others who were forced
to pursue their initial post-conviction review through such a
deliberately corrupted process, at least I was able to get my attempts
to have collateral counsel assigned to my case into the permanent
record, and although as intended, I was deprived of my meaningful
opportunity to pursue this crucial collateral review, thanks to Ted’s
assistance, that foundation was laid long ago.

It only took our Supreme Court another 25 years to finally recognize the
same constitutional concept that Ted walked me through so long ago—that
fundamental fairness and “due process” required the states to provide
competent and “effective” assistance of initial-review collateral
counsel and if actions attributable to the states deprived a prisoner of
that meaningful opportunity to pursue the necessary post-conviction
review, then an equitable remedy must be made available. See Martinez v
Ryan, 132 Sect. 1309 (2012).

I would say that Ted is probably rolling over in his grave and smiling
at all this, but I know he was never buried. It was his choice to be
cremated and have his ashes spread in the Cascade Mountains, where he
called home.

Perhaps this is one of the lessons I had to learn in those early years
when I first came to Death Row. I shared many preconceived opinions that
most in our society would. Because of what I heard of Ted Bundy, I had
expectations that soon proved to be an illusion. Often over the years I
have struggled with the judgments we make of others around us, only too
quickly forgetting that while we go through our lives throwing stones,
we become blissfully oblivious to the stones being thrown at us.

Maybe we will want to call him a monster, and few would deny the evil
that existed within him. But when I look to those who gather outside on
the day of yet another state-sanctioned execution, I now see that same
evil on the face of those who all but foam at their mouth while
screaming for the death of one of us here. That doesn’t make these
people evil, per se, but merely reminds me of a truth I came to know
only by being condemned to death: that both good and evil do
simultaneously co-exist within each of us and only by making that
conscious effort every day to rise above it, can each of us truly hold
any hope of not succumbing to it and becoming that monster ourselves.

Being condemned to death is often ultimately defined by the evolution of
our spiritual consciousness. I know all too well that there will be
many who will want to throw stones at me because I dared to find a
redeeming quality in someone they see as a monster. And as those stones
might fall upon me, I will wear those scars well, knowing that it is
easy to see only the evil within another, but by becoming a stronger man
I can still find the good. And despite being cast down into the bowels
of a hell, that ability, and even more importantly, that willingness to
find good in those around me has made me a better man.

It was around that same time that the hands of fate brought me into
contact with another man I knew long before I came to Death Row. The
thing about this micro-community we are cast down into is that it really
is a very segregated world. Unless you get regular visits—which very
few ever do—you’re never around any others but those housed on your
particular floor.

Not long after I came to be housed on R-wing, I went out to the
recreation yard and recognized a familiar face. I knew him as Tony
(Anthony Bertolotti) and back in 1982 we did time together at Baker
Correctional, a state prison up near the Georgia state line. I was the
clerk for the vocational school program at Baker while Tony worked as a
staff barber. Because both of us were assigned “administrative” jobs, we
were both housed in the same dormitory, just a few cells apart.
Although he wasn’t someone I hung out with back then that small measure
of familiarity created a bond and we would talk for hours about those we
once knew.

But Tony wasn’t doing so well. Like me, he had been sentenced to death
in 1984 and in just those few years he had already given up hope. That
was common, but few actually acted upon it. Tony was one of these few,
and at the time he was beginning to push to force the governor to sing
his death warrant, which he did subsequently succeed and became one of
Florida’s first “voluntary” executions. His only perception of reality
around him was cast within a dark cloud, so dark no sunshine could
appear. And his own escape from that reality was to pursue that myth
they call “finality” by bringing about his own death.

So, there I lay that early fall morning. If at that moment I were to get
out of that bunk and stand at the front of my cell, I know that I could
look straight outward a couple hundred feet in the distance and clearly
see that grass-green building we know as the generator plant, which
stood just on the other side of the rows of fencing crowned with even
more rows of glistening razor wire. And then by looking off to my right
of the wing, immediately adjacent to the one in which I was housed, I
could see the windows on the first floor that I knew would be where the
witnesses gathered when they carried out each execution.

Although I knew these sights well, as well as the sound and smell of
that generator plant that they cranked up every Wednesday to test the
electric chair (long after that electric chair was banished and replaced
with lethal injection they continued to crank that generator up),
instead I chose to lay there in my bunk with my eyes closed and
manipulate those sounds and smell into a memory that didn’t drag me down
and even bring about a smile.

There was another time in my life when I would be awoken to the sound
and smell of a diesel generator, and it too was all about how I chose to
perceive it. When I was 15 years old I left home and found the only
kind of job a homeless teen could by working with a traveling carnival,
mostly around the Chicago area.

Most people might find it unimaginable that a “child” of 15 would be out
on his own, but if they knew what life was like at “home” then they
might understand why I can look back at that time and find a measure of
happiness I seldom experienced in my so-called life. Leaving home as a
teenager was not so much a choice, but a means of survival. I wasn’t
alone—all my siblings also dropped out of school and left “home” at
their earliest opportunity and so at least for me, finding work with a
traveling carnival was a blessing, as the alternative was to live on the
streets.

In the spring of 1976, shortly before my 16th birthday, I left Florida
with a carnival that had worked the local county fair, assured I would
find work when they joined another show in the Chicago area. But it
didn’t work out that way as it was still too cold for the carnivals to
set up. For the first few weeks I had no work and no place to stay. I
had no money for food and tried to find a meal at a Salvation Army
kitchen only to be interrogated by the volunteers who insisted they had
to send me “home.” I left without being fed and never again went to a
shelter.

At that time in my life, while most my age were just starting High
School, living on the streets and sleeping on layers of cardboard boxes
was better than being forced to return home and once the weather warmed
up and the carnival could set up, I found work at a game concession
paying twenty dollars a day—and the boss allowed me to sleep at night in
the tent.

Each morning when it was time to start opening the show, that generator
would crank up and first that distinctive machinery rumbling would be
heard followed only a moment later by that sulfuric smell of the diesel
exhaust, and when I closed my eyes that same sound and smell still made
me smile, is just like waking up to that job I found at 15, it brought
me, at least mentally, to a safer place that anything I knew of as
“home” and the freedom of being on my own.

Now when I hear (and smell) that generator just as I did the first time
on that chilly early fall morning of 1985, I am reminded that whether it
be man or machine, it’s all in how we choose to see it, as the evil
within anyone or anything can only exist if one chooses to focus on
that. But just as I learned from coming to actually know the person that
was Ted Bundy, and finding that although evil acts can undoubtedly be
attributed to him, he was not all evil, but also possessed that measure
of a man within that had good, it is also true for the many years that
would follow as if I’ve learned nothing else through this experience, it
is that this evil that exists within the manifestation of the men (and
women) around us exists on both sides of these bars and no matter what
the source of evil might be, it can only touch and tarnish my own soul
if I allow it to.

My lesson so long ago was that redemption (especially that of self) is a
mirror that we look into and it’s the image that looks back upon us
that ultimately defines who we are and more importantly, who we become. I
consider myself blessed to have been around those that society has
labeled as “monsters” as it has endowed upon me the strength to find
something good within each. And I know that as long as I can find a
redeemable quality in all others, there will still be the hope that
others will find something redeemable within me.

Thursday, 25 June 2015

On April 28, 2015, the Supreme Court held “oral arguments” on an
Oklahoma case that argues that the drug Midazolam Hydrochloride used in
the lethal injection process fails to adequately render the intended
victim unconscious, resulting in the executing inflicting unnecessary
pain and suffering in violation of the Constitutional prohibition
against “cruel and unusual punishment.”

A decision is expected to be rendered by the end of June. Until this
issue is resolved, executions in numerous states (including Florida)
have been put on hold. But the general consensus among legal experts is
that the Supreme Court will find (by a predictably narrow margin of 5 to
4) that despite the overwhelming evidence of numerous prisoners seen to
have remained conscious after this drug (Midazolam) was administered it
fails to establish that measure of “deliberate indifference” necessary
to prove an infliction of “cruel and unusual punishment.”

Undoubtedly guiding the Supreme Court’s anticipated decision in June will be the narrow 5 to 4 decision reached in Baze v Rees, 553 U.S.
35 (2008) in which the court rejected a similar argument challenging
the use of sodium thiopental as the initial anesthetizing drug used in
Kentucky’s executions.

It must be emphasized that there is no dispute that if the initial
anesthetizing drug used in the “three drug cocktails” does not render
the person unconscious, upon injection of the following two drugs the
prisoner will suffer incomprehensible physical pain. But as the Supreme
Court has repeatedly held, simply because an execution method may result
in pain, either by accident or as an inescapable consequence of death,
it does not establish the sort of “objectively intolerable risk of harm”
that qualifies as “cruel and unusual.”

When it comes down to it, what the Supreme Court has consistently said
is that, as a matter of constitutional law, it is perfectly acceptable
to inflict incomprehensible pain and torture upon the prisoner as long
as it cannot be proven that those acting upon behalf of the state didn’t
actually intend to inflict unnecessary pain.

Rather, physically torturing a person to death under the pretense of
administering justice only arises to an unconstitutional infliction of
cruel and unusual punishment if it can be proven (not merely alleged)
that prison officials were deliberately indifferent to a “substantial…or
objectively intolerable risk of harm.”

Historically, the Supreme Court has not recognized any form of “botched
execution” to be in violation of this constitutional prohibition against
inflicting “cruel and unusual punishment,” as in every instance in
which the condemned prisoner suffered incomprehensible pain (i.e.
“botched execution”), during the execution process, prison officials
conveniently attributed this to an unforeseen accident…oops, sorry ‘bout
that.

To be clear, in the case currently before the Supreme Court challenging
the use of Midazolam as the initial anesthetizing drug there is no
dispute that the condemned man clearly was conscious and continued to
physically struggle as the subsequent two lethal drugs were
administered. Whether or not he suffered incomprehensible pain for a
prolonged period of time is not in dispute.

Instead, those challenging this particular lethal injection protocol
bear the burden of convincing a majority of the Supreme Court – the same
pro-death penalty conservatives who consistently remain openly hostile
to any challenge of the death penalty – that prison officials should
have known that this drug Midazolam was not going to render the prisoner
unconscious.

Quite simply, the ends justify the means and in a nation determined to
equate justice with vengeance at every level, as long as the majority of
Americans remain indifferent to the means of inflicting death, our
Courts simply will not take the action necessary to end this inhumane
infliction of torturous death.

But I would like to introduce into this debate an argument that seems to
be completely ignored…the psychological effect on the condemned
prisoner as he (or she) is strapped to that gurney awaiting that
uncertainty of a prolonged and torturous death, and more importantly,
why as a presumably civilized society we should even care whether
condemned prisoners experience physical pain when they are put to death.

I already know from experience that as soon as I (or anyone else) dares
to say that we should empathize with the pain inflicted upon the
condemned, they will see this as somehow negating the tragic suffering
of the victim of the crime. But one is not mutually exclusive of the
other and allowing the pain and suffering inflicted upon the victim to
justify indifference to the pain and suffering we then choose to inflict
upon the condemned only reduces all of us to the same measure of
monster we so quickly condemn.

Before anyone can be sentenced to death, the court must first identify
and find what is called “aggravating circumstances,” specific
circumstances unique to each case that makes that particular case stand
out as something more than the “typical” murder as (at least in theory)
the death penalty can only be imposed upon the “worst of the worst.”

By Supreme Court mandate – to conform with that same constitutional
prohibition against the infliction of cruel and unusual punishment –
each state that seeks this ultimate penalty is obligated to prove beyond a reasonable doubt that these special circumstances exist.

One of the most common “aggravators” used to impose death was that the
victim’s death was the product of a depraved mind. In Florida, this is
known as “heinous, atrocious, and cruel.” But regardless of each state’s
particular terminology, the definition remains the same…that the
victim’s death encompassed an intent not to merely kill, but to inflict
unnecessary pain and suffering, often this is not defined by the infliction of physical pain, but instead upon the psychological fear of imminent death.

This is but one of the irreconcilable paradoxes that exists in the
contemporary administration of the death penalty…if it can be shown that
the victim suffered the psychological fear of imminent death or
experienced physical pain “beyond that of typical death” then those
circumstances warrant the imposition of death as a punishment.

But when the state imposes that some measure of imminent fear of death
and even unnecessary physical pain resulting from a “botched execution,”
then the courts will excuse this as an unintended consequence.

Imagine for a minute that you are the condemned prisoner. First you will
spend many years in continuous solitary confinement as the appellate
review drags out and the uncertainty of your fate weighs down upon you.
The only people you remain close to through those years are the
condemned men around you and as time passes they will be dragged off to
their death – or, more often than not, they will simply rot away one day
at a time until they die of “natural causes.” Just as many more will
slowly detach from reality and slip into a world of their own making as a
means of escaping reality.

But somehow you maintained the physical and mental strength to survive
that prolonged process intended to break even the strongest men and only
then will you be rewarded with that visit from the warden as they show
up at your cell door and emotionlessly announce that your own execution
has been scheduled and you will immediately be transferred to the “death
watch” cell where you will suddenly find yourself completely isolated
from all those who until that moment provided your support. And then
that clock begins to tick away as you count down those last weeks, then
days, then hours, until they plan to kill you.

You are utterly helpless as you are forced to confront your own
mortality and with each tick of that clock you take yet another step
towards that fate and not even a moment goes by that you will be allowed
to forget that they intend to kill you.

But that undeniable imminent fear of death is only part of the
psychological process they will impose upon you, as the entire process
is designed to methodically break the condemned prisoner down; to reduce
him (or her) to something less than human, as by breaking us down to
that point in which we are no longer seen as human, then it makes it so
much easier to put us to death.

What few ever take even a moment to consider is that those of us who are
condemned actually live among, even in close proximity to, those who
are then put to death. We are each only too aware of the “botched
executions” and it takes on a personal dimension to each of us.

In my own personal experience I have known a number of those who were
subjected to “botched executions.” As I write this, it has been a
quarter of a century since the May 4, 1990 execution of Jesse Toffero at
Florida Supreme Court. From the time I came to death row in March 1984,
I came to know him well, and his mother who visited him regularly.
Jesse was her only child and losing him was itself traumatic, but her
knowing what he went through in those final moments elevated the trauma
far beyond that few could even comprehend.

At the time the then Florida governor Robert “Bloody Bob” Martinez
adopted a policy and practice of aggressively signing “death warrants”
in an attempt to expedite executions, it was not uncommon for Governor
Martinez to sign at least two death warrants a week and to keep up to
twelve men (and women) under imminent threat of execution.

In September 1988 Gov. Martinez signed my death warrant along with two
others (Robert Teffeteller and Amos King). We were all scheduled to be
executed on November 30, 1988, but both King and Teffeteller received
stays of execution, leaving only me to go down to the wire (please read
my death watch account “The Day God Died”). But I, too, finally received a last minute stay of execution and was returned to the regular death row housing area.

Upon my return to the regular wing, Jesse was one of the first to
welcome me back and send me a few celebratory snacks. Back then the
death-row community was much closer than it is not – as our numbers grew
and the years passed, we’ve become divided amongst ourselves.

A little over a year later Governor Martinez signed another death
warrant on Jesse and there was not room on Q-wing, so the warden
converted the first five cells on 2-north, R-wing to an improvised
“death watch.” As coincidence would have it, it was housed on that floor
at that time. Jesse’s death warrant had him scheduled for execution in
about 4 weeks and he remained on 2-north for the first few weeks, and we
talked every day.

Towards that last week of April they moved Jesse to the formal death
watch cell on the bottom floor of Q-wing, only a few feet away from the
execution chamber. But Jesse was confident that he would quickly win a
stay of execution as substantial new evidence was discovered that
supported his innocence and would subsequently lead to his
co-defendant’s (Sonya Jacobs) exoneration and release from death row.

But his claim of innocence fell on deaf ears and his final round of
appeals was denied. In the early morning hours of Friday, May 4, 1990,
the state of Florida proceeded to carry out the execution of Jesse
Taffero in what by all accounts seemed to be just another “routine”
execution.

Without exception, all those who gathered to witness Taffero’s execution
uniformly agreed that it was anything but routine. As they sat in
silence only a few feet away, separated only by a glass window, they
watched in horror as the masked executioner pulled the switch to begin
that first fatal cycle of electricity – only to have the electric chair
malfunction and as that surge of electricity connected, Jesse quite
literally burst into flames before them, and they could see that Jesse
was still alive and physically struggling against the leather
restraints.

As the flames could be visibly seen, smoke and the putrid smell of
burning flesh filled the room. The executioner didn’t know what to do,
so he hit the switch again, but it only caused even more flames, and
again they could still see Jesse struggling despite the two failed
attempts to execute him. Nobody really knew what to do – they never
trained for failure. But after too many minutes passed, they again hit
the switch for a third time and only then did Jesse die, slowly tortured
to death in a scene straight out of the worst nightmare one could
imagine.

Later an investigation would conclude that those responsible for
carrying out the execution failed to properly saturate the sponge in the
saline solution used to ensure conductivity, resulting in what laymen
would say was a “short” in the connection, causing that artificial
sponge to catch fire.

But it would take two more similar “botched executions” in Florida’s
electric chair (Pedro Median and Allen Davis) before Florida only
reluctantly surrendered its three-legged monstrosity and switched to
lethal injection in early 2000.

However, even though they would argue that lethal injection was more
humane, it too has repeatedly proven to be less than what they would
want us to believe. Shortly after Florida adopted lethal injection they
went to put Bennie Demps to death, but couldn’t find a vein in which to
insert the needle. At the last minute a member of the execution team –
presumably not a doctor as the American Medical Association prohibits
licensed physicians from participating in the execution process – found
some sort of scalpel and sliced Demps inner thigh open, causing
substantial blood loss, to access a vein in his leg and then the needle
was inserted. All the while Bennie Demps remained fully conscious and
strapped tightly to the gurney.

A few years later when Florida proceeded to carry out the execution by
lethal injection on Angel Nieves Diaz on December 13, 2006, the person
responsible for inserting the needles into each of Angel´s arms ignored
obvious signs any trained medical personnel would have immediately
recognized that both needles had actually pierced through his veins and
onto the soft tissue beyond.

Once again a room full of witnesses watched in horror as a man was quite
literally tortured to death a few feet in front of them. For what was
determined to be a full 34 minutes, and not until two separate doses of
lethal drugs were pumped into his veins, Angel Diaz physically struggled
in obvious pain. Later, an autopsy would find chemical burns on both
his arms, and a conclusion that he undoubtedly suffered “excruciating
pain” (see article, “Expert: Key Signs Ignored in Botched Execution of Miami Killer” by Phil Davis, Orlando Sentinel, February 5, 2007).

Despite indisputable evidence that botched executions are only too
common, repeatedly a narrowly divided Supreme Court has consistently
rejected the notion that inflicting incomprehensible physical pain
during this state-sanctioned ritual of death constitutes the infliction
of “cruel and unusual punishment.”

The problem is that proponents of the death penalty have successfully
manipulated the focus of this inquiry exclusively on the relatively
temporal infliction of physical pain at that moment of the botched
execution, ignoring entirely the irrefutable psychological torment the intended victim of such executions endures.

Our legal system has long recognized that the infliction of emotional
duress is a form of injury subject to judicial redress. If a person
slips and falls at the local grocery store, or is hit by a truck causing
considerable physical injury, that person is legally entitled to seek
compensation for the psychological duress inflicted, often to an even
greater extent than the physical injury itself.

Equally so, the infliction of psychological trauma upon the victim of a violent crime – especially the torture
one endures as the result of being aware of their imminent death – is
often the decisive factor in determining whether the perpetrator of that
crime is constitutionally eligible for a sentence of death.

So, why is it that when confronted with this virtual epidemic of
“botched executions” the entire focus is exclusively on that infliction
of physical pain and our courts conveniently ignore altogether the more
obvious infliction of psychological trauma imposed upon the condemned?

To me, it’s not so much about whether the condemned person actually
suffered physically when that execution is carried out, but instead
whether that condemned prisoner suffered the psychological trauma of
knowing that once they did proceed with their practiced ritual, one he
(or she) remained helplessly strapped in that gurney and waited for the
executioner to begin that fatal process, would they yet again screw up?
Instead of simply being put to death, would they “unintentionally” botch
that execution and that condemned prisoner then be subjected to what
nobody denies will be a prolonged and torturous death?

I do realize that some would argue that those we condemn to death
deserve nothing more than that infliction of physical pain, and that the
more they suffer, the better. Fortunately, those who are consumed by
their own malicious need to inflict a torturous death upon another human
being are few and do not represent the broader consensus.

When it comes down to it, this simple truth remains…whether it is an
individual, or as a collective society, we are ultimately defined not by
what we say, but what we do. It is our actions, not our words, which
paint the true picture of who we are.

If by our actions we so deliberately mimic the actions that we recognize
define “the worst of the worst,” then how can we hope to become
something better than the worst if all we strive to be is nothing more
than the worst?

Even the most staunch proponents of the death penalty (Supreme Court
Justices Thomas and Scalia) recognize that through the years since this
nation came to be, as a society we have grown intolerant of the
imposition of punishments that were once considered humane and
judicially necessary, practices that today would unquestionably “shock
the conscience” of a civilized society and in our more enlightened and
evolved social conscience be seen as a constitutionally intolerable
infliction of cruel and unusual punishment.

In Baze v Rees, 553 U.S. 35, 94-95 (2008) Justices Thomas and
Scalia concurred in the decision that a botched execution is not itself
sufficient to constitute the infliction of cruel and unusual punishment absent evidence of a subjective intent to inflict physical pain by providing an informative summary of the evolution of capital punishment in America.

The Eighth Amendment’s prohibition on the “infliction of cruel and
unusual punishments” must be understood in light of the historical
practices that led the framers (of the Constitution) to include it in
the Bill of Rights.

That the Constitution permits capital punishment in principle does not,
of course, mean that all methods of execution are constitutional. In
English and early colonial practice, the death penalty was not a uniform
punishment but a range of punishments, some of which the framers likely
regarded as cruel and unusual death by hanging was the most common mode
of execution both before and after 1791 (when the U.S. Constitution was
ratified) and there is no doubt that it remained a permissible
punishment after enactment of the Eighth Amendment. “An ordinary death
by hanging was not, however, the harshest penalty of the disposal of the
seventeenth and eighteenth century state”: S Banner; The Death Penalty: An American History
(2002). In addition to hanging, which was intended to, and often did,
result in a quick and painless death, “officials also wielded a set of
tools capable of intensifying a death sentence,” that is, “ways of producing a punishment worse than death” Banner, id at 54.

One such “tool” was burning at the stake. Because burning, unlike
hanging, was always painful and destroyed the body, it was considered a
form of “super capital punishment worse than death itself.” Banner at
71. Reserved for offenders whose crimes were thought to pose an
especially grave threat to the social order – such as slaves who killed
their masters and woman who killed their husbands (contrary to
historical myth, burning at the stake was not reserved exclusively for
alleged “witches”) burning a person alive was so dreadful a punishment
that sheriffs sometimes hanged the offender first “as an act of charity”
Banner at 72.

Other methods of intensifying a death sentence included “gibbeting” or
hanging the condemned in an iron cage so that (only after prolonged
death by starvation) his body would decompose in public view: see Banner
at 72-74, and “public dissection,” a punishment Blackstone associated
with murder, 4 W. Blackstone, Commentaries, 376 (W. Lewis ed 1897). But
none of these were the worst fate a criminal could meet. That was
reserved for the most dangerous and reprobate offenders – traitors. “The
punishment of high treason,” Blackstone wrote, was “very solemn and
terrible” and involved “emboweling alive, beheading and quartering.”
Thus, the following death sentence could be pronounced on men convicted
of high treason:

“That you and each of you be taken to the place when you came, and from
thence be drawn on a hurdle to the place of execution, where you shall
be hanged by the necks, not till you are dead, that you be severally
taken down while still alive, and your bowels be taken out and burnt
before your faces – that your heads be then cut off, and your bodies cut
in four quarters, to be at the King’s disposal. And God Almighty have
mercy on your souls” G. Scott, History of Capital Punishment 179
(1950).

The principal object of these aggravated forms of capital punishment was to terrorize the criminal and thereby more effectively deter the crime. Their defining characteristic was that they were purposely designed to inflict pain and suffering beyond that necessary to cause death.
As Blackstone put it, “in very atrocious crimes, other circumstances of
terror, pain or disgrace were superadded.” These “superadded”
circumstances “were carefully handed out to apply terror where it was
thought to be frightening to contemplate” Banner, 70.

As the Supreme Court’s two most zealous proponents of the death penalty
went on to reluctantly concede, all these forms of capital punishment
were subsequently found to “offend the notions of a civilized society”
sufficient to “shock the conscience” and constitute the infliction of
cruel and unusual punishment, as “embellishments upon the death penalty
designed to inflict pain for pain’s sake also would have fallen
comfortably within the ordinary meaning of the word ‘cruel’ see U. S.
Johnson, A Dictionary of the English Language 459 (1773)
(defining ‘cruel’ to mean “pleased with hurting others; inhuman;
hardhearted; void of pity; wanting compassion; savage; barbarous;
unrelenting”). In Webster, An American Dictionary of the English Language 52 (1828) (defining “cruel” as “disposed to give pain to others, in body or mind, willing or pleased to torment, vex or afflict; inhuman; destitute of pity, compassion or kindness”).

Although our moral compass continues to evolve, since the introduction
of electrocutions as a means of execution, the Supreme Court has
declined to recognize any contemporary means of execution as
“cruel and unusual” despite repeated examples of horrifically botched
executions such as that addressed in Louisiana ex rel. Francis v Resweber
329 U.S. 459 (1947) in which the electric chair famously failed and the
condemned prisoner survived – only to have the Supreme Court conclude
that the failure to kill the condemned prisoner was merely an “accident”
and instructed the State of Louisiana to strap that prisoner in again
and try to do a better job the next time. Virtually no consideration was
given to the obvious psychological trauma inflicted upon this condemned
prisoner.

When it is clear that virtually every member of our Supreme Court
unequivocally recognizes that what constitutes the infliction of cruel
and unusual punishment are not so much the means in which the death
penalty is administered, but whether the process itself was
“designed to inflict torture as a way of enhancing a death sentence;
(and) intended to produce a penalty far worse than death, to accomplish
something more than the mere extinguishment of life. The evil the Eighth Amendment targets is intentional infliction of gratuitous pain which basically has been recognized to give pain to other in body or mind.”

In good conscience, can anyone deny that the condemned prisoner will
undoubtedly experience incomprehensible psychological trauma not merely
because of his (or her) imminent death, but because of the knowledge
that this imminent ritual may not actually produce a “painless” death,
but instead inflict a prolonged and unquestionably excruciating and
torturous death?

When I consider this issue, I am reminded of the many examples of
classic literature I read through the years and how each reached beyond
simply telling a story to instead illustrate a greater truth. And it was
confronting that inconvenient truth that elevated each to historical
significance.

When Mary Shelley wrote the fictional book “Frankenstein,” it was
not simply a story of man creating a monster, but how the monster then
infected society with a fanatical need to destroy that monster and in
that process, consumed by that need to conquer this beast, they became
the monster. So too did the story go in “Moby Dick.” Ahab’s
obsession with slaying that Great White Whale blinded him and then
destroyed him. In the end, the beast presumably survived.

So too does the story go with this struggle to define whether any
particular method of execution constitutes the infliction of cruel and
unusual punishment – we become consumed with only that physical
infliction and conveniently oblivious to the psychological trauma the
condemned prisoner must endure.

I have no doubt that in time future generations will look back upon our
contemporary society and they will struggle to understand how a society
that prides itself on the humane treatment of all people could at the
same time blind itself to the infliction of such a barbaric ritual of
death. And for what? Nobody can claim that only the worst of the worst
are being put to death. And we know that those we do put to death could
even be innocent as our judicial system is far from perfect. So we
cannot even say that justice is being served.

In the end, the one question that needs to be addressed is simply
whether we, as a society, want to define our moral conscience by
mimicking the same measure of depravity that we condemn in the “worst of
the worst.” If the best that we strive to be is nothing more than the
worst of those amongst us, can we ever truly hope to become something
better ourselves?